ABDUL RAZZAK Vs. SUDIP KR DUTTA GUPTA

JUDGEMENT

(1.) ORDER :- The petitioner is facing a trial before a Judge, City Sessions Court, Calcutta for an offence punishable u/S. 20(b)(iii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and in course of such trial the prosecution wanted to examine as a witness one Sri Debi Prosad Nandigrami, an Intelligence Officer of the Narcotic Control Bureau with a view to prove that the petitioner had made a confessional statement before such officer. The petitioner objected to the examination of the said witness on the ground that he having been invested with the powers of an Officer-in-Charge of a police station for the investigation of the offence under the Act in accordance with the provisions of S.53 thereof, he must be regarded as a police officer and as such any confession made to him was hit by the provisions of S.25 of the Evidence Act and could not be proved against the petitioner. The learned Judge has found against the petitioner and hence he has come up in revision.

(2.) The whole question, therefore, which arises for determination is whether Sri Nandigrami by reason of the power given to him u/S. 53 of the Act, can be regarded as a police officer within the meaning of S.25 of the Evidence Act. The expression police officer as occurring in S.25 of the Evidence Act had been interpreted in a large number of cases by different High Courts with some difference of opinion but it is not necessary to refer to those decisions, in view of the pronouncement of the Supreme Court in State of Punjab v. Barkat Ram, AIR 1962 SC 276 in which it has been laid down that the words police officer are not to be construed in a narrow way but have to be construed in a wide and popular sense but not so wide as to include persons on whom only some of the powers exercised by the police are conferred. Once this position is accepted there is no escape from the conclusion that an officer invested with the powers of an Officer-in -charge of a police station under Section 53 of the Act cannot be regarded as a police officer because he has a least no power to file a charge-sheet before the Magistrate after completion of investigation. Under S.190 of Cr. P.C. a Magistrate can take cognizance, inter alia, upon a report in writing made by a police officer and for the purpose of this provision police officer can only be a police officer so called as the scheme of the Cr. P.C. shows and consequently if an officer invested with power u/S. 53 of the Act wants to initiate prosecution, he will have to make a complaint before a competent Magistrate to enable him to take cognizance. Reference may be made in this connection to the decision of the Supreme Court in Badaku Joti v. State of Mysore, AIR 1966 SC 1746 , in which case it was held that a Central Excise Officer, even though invested with the powers of an Officer-in-charge of a police station u/S. 21(2) of the Central Excises and Salt Act, had no power to submit a charge-sheet before a Magistrate and could only file a complaint. On a parity of reasoning it can be held, as already stated, that an officer invested with the powers of the Officer-in-charge of a police station u/S. 53 of the Act also cannot file a charge-sheet but can only make a complaint for starting a prosecution. In A.B. Agarwal v. B.M. Bhat 1989 Cri LJ 765, a learned Judge of Gujarat High Court has also taken the same view. Besides this decision the learned advocate for the opposite party has also cited a Bench decision of Delhi High Court, not yet reported, in Kripal Mohan Virmani v. B.D. Mishra, Intelligence Officer (Criminal Misc. (M) 1451 of 1987 along with Criminal Revision 170 of 1987 and Criminal Misc. (M) 1258 of 1987)*in which their Lordships held, following Badaku Joti's case (supra), that there is nothing in the Act to suggest that an officer empowered u/S. 53 thereof can make a report u/S. 173 of the Cr. P.C. and further that such an officer is not a police officer within the meaning of S.25 of the Evidence Act. Thus the consistent view of at least two other High Courts is that an officer invested with the powers u/s. 53 of the Act cannot be regarded as a police officer and no decision to the contrary by any High Court has been brought to my notice. * Reported in (1989) 20 ECC 28 (Delhi).

(3.) In some other respects also power of an officer empowered u/s. 53 of the Act differ substantially from that of a police officer under the Cr. P.C. An Officer-in-charge of a police station can under certain circumstances release an accused on bail as laid down in S.437(2) of Cr. P.C. occurring in Chap. XXXIII of the Code, of course after recording reasons as provided in Sub-Sec. 437(4) of the code. This power is not coexistant with the power of making an investigation under Chap. XII of the Cr. P.C. and, therefore, in the absence of a corresponding provision in the Act to enable an officer invested with the powers of an Officer-in-charge of a police station u/s. 53 thereof to grant bail, such an officer cannot undoubtedly release an accused on bail. Thus, again it is found that such an officer does not possess all the powers of the Officer-in-charge of a police station and cannot, therefore, be regarded as a police officer within the contemplation of S.25 of he Evidence Act.